M/S Balaji Trade Agency vs. The Union Of INDIA And 8 Ors

Page No.# 1/6 GAHC010150342021

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5062/2021 M/S BALAJI TRADE AGENCY REP. BY ITS PROPRIETOR MANPRIT PASWAN, S/O. SAROJ PASWAN, R/O. BALAJI TRADE AGENCY, KALAIN BAZAAR, VILL. BRAHAMONGRAM, SILCHAR, DIST. CACHAR. VERSUS THE UNION OF INDIA AND 8 ORS REP. BY THE SECRETARY TO THE DEPTT. OF REVENUE, CENTRAL BOARD OF EXCISE AND CUSTOMS, MINISTRY OF FINANCE, GOVT. OF INDIA, NEW DELHI-110008. 2:THE COMMISSIONER OF CUSTOMS PREVENTIVE 110 MAHATMA GANDHI ROAD NER SHILLONG-793001 MEGHALAYA. 3:THE ADDL. COMMISSIONER OF CUSTOMS PREVENTIVE 110 MAHATMA GANDHI ROAD NER SHILLONG-793001 MEGHALAYA. 4:THE DEPUTY COMMISSIONER OF CUSTOMS PREVENTIVE DIVISION DHUBRI DAKSHINA BHAWAN P.O. AND DIST. DHUBRI PIN-783301. 5:SUPDT. PREVENTIVE

Page No.# 2/6 CUSTOMS PREVENTIVE DIVISION DHUBRI DAKSHINA BHAWAN P.O. AND DIST. DHUBRI PIN-781012. 6:THE GENERAL MANAGER NORTH EAST FRONTIER RAILWAY MALIGAON GUWAHATI PIN-781012. 7:DIRECTOR TRAFFIC COMMERCIAL (CLAIMS) RAILWAY BOARD. 8:PRINCIPAL CHIEF COMMERCIAL MANAGER NORTH EAST FRONTIER RAILWAY MALIGAON GUWAHATI PIN-781012. 9:INSPECTOR A/S UNIT CUSTOM DIVISION DHUBRI Advocate for the Petitioner : MS. N RAI Advocate for the Respondent : ASSTT.S.G.I.

BEFORE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK 10/12/2021 Heard Ms. S S Zia, learned counsel for the petitioner and Ms. P Das, learned counsel appearing on behalf of Mr. S C Keyal, learned Standing, Customs Department for the respondent Nos. 1 to 5 and 9. Also heard Mr. B K Das, learned Standing counsel, Railways for the respondent Nos. 6 to 8. Page No.# 3/6 Petitioner is a business farm and deals with supply of various organic raw materials including Areca Nuts in various regions. It is stated that on receipt of an order from M/S. Areca Trade Agency, West Bengal, Kolkata for supply of Indian origin Areca Nuts for industrial purpose, the petitioner packed 20,000 Kgs. of Areca Nuts of Indian origin worth Rs.27,32,600/- in 250 bags paying the due GST and other requisite taxes, obtaining e-way bill/tax invoice and on 18.08.2021 sent those consignment to the consignor through Train No. 03176 (Parcel Van) of Indian Railways from Cachar. On 24.08.2021, around 03:45 AM, when the said Railway Train No. 03176 with the Parcel Van reached Plate Form No. 1 at New Bongaigaon Railway Station of District-Bongaigaon, Assam, the Customs Officials seized the said consignment of Areca Nuts from the Parcel Van of the said Train along with the relevant documents and tax invoices alleging that the said consignment as smuggled goods. Being the consignor of said seized Areca Nuts, the petitioner contended that the said Areca Nuts are the products of indigenous crops from the North East and those were transported to the destination of the consignee, following the due procedure, but the respondents in the Customs Department illegally seized the said consignment of Areca Nuts that was sent by the petitioner farm. As such, the petitioner immediately on 30.08.2021 submitted representation before the Commissioner of Customs, Custom (Preventive) Commissionerate, Shillong, Meghalaya for provisional release of the said seized Areca Nuts stating that those are highly perishable in nature and are meant for industrial purpose and that the said Areca Nuts being not prohibited and being not notified under Section 123 of the Customs Act, 1962, as restricted or banned goods, therefore, the same should be released. The petitioner again on 06.09.2021 submitted similar representation before the Commissioner of Customs, Custom (Preventive) Commissionerate Shillong, Meghalaya. Since the respondents in the Customs Department neither considered those representations of the petitioner nor made any provisional release of said seized Areca Nuts, being aggrieved with the same, the petitioner has preferred this writ petition praying amongst others to set aside the illegal seizure of the consignment of Areca Nuts, noted above, seized in the Seizure Case No. 03/CL/IMP/DPF/DB/2021-22 dated 24.08.2021 and further, to direct the respondent Nos. 2, 3 and 4 herein in the Customs Department to make provisional release of the said illegally seized consignment of Areca Nuts being highly perishable in nature. It is submitted that after such representations filed by the petitioner, it was expecting for availing the benefit of the statutory provisions of provisional release of said illegally seized Areca Nuts

Page No.# 4/6 of Indian origin under Section 110A of the Customs Act. The respondents in the Customs Department filed its affidavit in the matter on 03.12.2021 stating that on 25.08.2021 the samples of seized Areca Nuts were sent to the Executive Officer, Areca Nut Research & Development Foundation (ARDF), Mangalore, Karnataka to determine its country of origin, genre, species, etc. as well as to the Food Analyst to the Government of Assam, State Public Health Laboratory, Bamunimaidan, Guwahati to ensure whether the seized Areca Nuts are fit for human consumption or not. It is stated by the respondents that the ARDF, Mangalore, Karnataka, after due test, by its communication dated 07.09.2021 gave its final conclusion stating that the seized Areca Nuts seems to be of Myanmar origin and its quality is bad, since as much as 33% of the said Areca Nuts had been either infested by moulds or insects. It is also placed before the Court by the respondents in the Customs Department that the Food Analyst to the Government of Assam, Guwahati on 29.08.2021 submitted its report stating that as per Food Safety and Standards Regulations, the samples are not suitable for the use of human consumption. It is further placed before the Court by the respondents in the Customs Department that inspite of issuance of summons, the petitioner has not submitted the relevant documents as sought for so as to prove its ownership and legal importation of the same into India and therefore, it has reasons to belief that Sri Manprit Pawan, Proprietor of the petitioner is the actual owner of the seized Areca Nuts. In addition to the above, the Customs Department submitted that as the case is under investigation, so it cannot be concluded that provisional release of the seized Areca Nuts to the actual owner will not hamper the investigation of the case. From the affidavit filed by the Customs Department, the Court have observed that the said seizure was made on the basis of specific information that those were illegally imported dry Areca Nuts (Myanmar) were transported in the Parcel Van No. 122827 of Train No. 03176 (Silchar to Sealdah via New Bongaigaon) and that on receipt of such information when the Customs Officers immediately informed the Deputy Superintendent of New Bongaigaon Railway Station as well as the Officer-in-Charge of the Railway Protection Force (RPF), New Bongaigaon Railway Station in writing for making necessary arrangement to stop the train for a short while to check the Parcel Van of the Page No.# 5/6 said train, the same was accordingly done smoothly and detained the said goods after breaking open the lock for checking purpose, following all the requisite formalities by the Railway Department through Railway Protection Force (RPF) and the Government Railway Police (GRP). Moreover, the respondents in the Railways also stated that though summons were issued to both the consignor and the consignee at their principal place of businesses, but those were returned undelivered with the remark “Insufficient Address”. The respondents in the Customs Department submitted that the concerned mobile phone used for noting GST registration, found to be registered in the name of another person, whose address is found to be at North 24 Parganas, West Bengal, whereas the address of the Principal place of business of the consignee is untraceable. The Customs Department in its affidavit categorically stated that Sri Manprit Pawan, Proprietor of the petitioner in spite of receipt of the summons failed to appear and could not submit any of the relevant documents as directed for the purpose of investigation of the case. At this stage, on instructions of the petitioner, Ms. S S Zia, learned counsel for the petitioner prayed that the representations of the petitioner dated 30.08.2021 and 06.09.2021 may be disposed of by the respondents in the Custom Department and the said authority may consider for provisional release of the seized Areca Nuts. On instructions, Ms. S S Zia, learned counsel for the petitioner also submitted that the petitioner is not pressing any other prayers made in this writ petition excepting disposal of its representations dated 30.08.2021 and 06.09.2021 by the authorities in the Custom Department. Considering such submission of the petitioner, to which the respondents in the Customs Department have no objection, this writ petition is disposed of with a direction that the petitioner shall appear before the Investigating Authority of the Customs Department during the office hours, i.e., 10:00 AM to 5:00 PM and thereafter, as and when it is required for necessary investigation of the case on the basis of the summons issued in the said Seizure Case No. 03/CL/IMP/DPF/DB/2021-22 dated 24.08.2021 within 15 (fifteen) days of making available of the certified copy of this order by the Registry of this Court. The respondent No. 2, Commissioner of Customs (Preventive), North Eastern Region, Shillong, Meghalaya after giving an opportunity of hearing to the petitioner shall dispose of the representations of the petitioner dated 30.08.2021 and 06.09.2021 within 10 (ten) days with a Page No.# 6/6 reasoned order intimating the petitioner about the outcome of the same. As this order has been passed in presence of the counsel for the petitioner as well as the respondents in the Customs department, no fresh notice need be issued by the authorities in the Customs department to the petitioner or any other interested persons connected with it for appearance before the concerned Investigating Officer of the case involved in this writ petition in terms of the summons already received by the petitioner including its proprietor, Sri Manprit Pawan. Copy of this order be furnished to Mr. Subhash Chandra Keyal, learned Standing counsel, Customs Department for his necessary use.

JUDGE

Comparing Assistant